Excerpt: - .....and particularly the 96 workmen who have joined this dispute should be placed directly under the calcutta corporation as its direct employees. they will be made permanent according to the conditions referred to above having the terms and conditions of employment as stated above3. having decided issue (3) in the aforesaid manner, the fifth industrial tribunal disposed of issue (1) as follows:i allow, however, basic pay and dearness allowance on the same scale as the other permanent unskilled workmen of the calcutta corporation do get at present, having of course, the same status.4. the tribunal disposed of issue (2) in the following manner:i award that these workmen will get the same leave and holidays as are being enjoyed by similar other workmen of the calcutta corporation.5. the.....

Judgment:

B.N. Banerjee, J.

1. The Corporation of Calcutta employs certain contractors, who are called 'sardars,' for maintaining in proper condition the filter-beds in the Falta Waterworks belonging to the said corporation. The petitioners are three such 'sardara.' It was part of their contract to remove silt and sand from the filter-beds and refill the same according to the specifications laid down by the corporation. The petitioners in their turn employ a force of labour consisting of certain coolies and workers. As there is no guaranteed supply of work, and the volume of work varies from season to season, the employment of labour is casual and varies from time to time. The grievance of the labourers or coolies employed by the 'mrdars,' like the petitioners, was that being employed by independent contractors, they did not get the same terms and conditions of employment or amenities that they would have got, had they been employed directly by the corporation. This grievance raised an industrial dispute; and on 29 February 1956, the State Government made an order, in exercise of its powers under Section 10 of the Industrial Disputes Act, making a reference of the following issues to the fifth industrial tribunal, West Bengal, for adjudication:

(1) Basic pay and dearness allowance.

(2) Leave and holidays.

(3) Should the present contract system be abolished and whether the workmen now employed by the three contractors be directly employed by the Corporation of Calcutta on the same terms and conditions of employment as are enjoyed by similar workmen of the Corporation of Calcutta.

2. The fifth industrial tribunal took up the decision of issue (3) first of all and came to the following conclusion:

The present contract system should be abolished within one month of the award coming into operation. The workmen now employed by the three contractors, if they so chose (Sri Biswanath Ghosh, Sri Ramdohin Singh and Sri Nagina Singh) and particularly the 96 workmen who have joined this dispute should be placed directly under the Calcutta Corporation as its direct employees. They will be made permanent according to the conditions referred to above having the terms and conditions of employment as stated above

3. Having decided issue (3) in the aforesaid manner, the fifth industrial tribunal disposed of issue (1) as follows:

I allow, however, basic pay and dearness allowance on the same scale as the other permanent unskilled workmen of the Calcutta Corporation do get at present, having of course, the same status.

4. The tribunal disposed of issue (2) in the following manner:

I award that these workmen will get the same leave and holidays as are being enjoyed by similar other workmen of the Calcutta Corporation.

5. The Corporation of Calcutta moved against the award before this Court, under Article 226 of the Constitution, and obtained a rule, being Civil Rule No. 3596 of 1956. That rule came up for hearing before Sinha, J., and his lordship was pleased to make that rule absolute with the following observations:

The result is that, in my opinion, the reference of the third issue in the order of reference, dated 29 February 1956, was wholly incompetent. First it was not an industrial dispute at all and the Government had no jurisdiction to refer such a question for adjudication. It follows that the finding of the tribunal upon the third issue is wholly incompetent, inasmuch as the tribunal had no jurisdiction to direct the corporation to treat the contractor's workmen as its own workmen. So far as the finding is concerned, that the corporation was the ultimate employer of these workmen, the learned tribunal has given its reasons and these reasons do not support the conclusion. As I have stated above, the issue had not at all been referred to the tribunal and, therefore no such finding could be made. It appears that all parties went up on the footing that the workers were workers of the contractors and, therefore, this finding that the corporation was the employer of these workmen was neither referred to the tribunal for adjudication, nor can the finding be supported from the reasoning given and is erroneous on the face of the record;

6. Thereafter, the Department of Labour, Government of West Bengal, was moved by the workers' union, apparently under Section 33C(2) of the Industrial Disputes Act, and there were statements of claim also filed by the workmen. The State Government thereupon referred the claim to the second labour court for computation. The material portion of the order, which is dated 8 September 1960, is Bet out below:

Now, therefore, in exercise of the power conferred by Sub-section (2) of Section 33C of the Industrial Disputes Act, 1947 (XIV of 1947), the Governor la pleased hereby to specify the second labour court constituted by notification No. 1727-IR/IB/3A-1/58, dated 26 April 1958, as the labour court by which the amount at which the benefits above referred should be computed may be determined.

7. The petitioners took two preliminary objections before the tribunal to the following effect:

(a) The benefits which are the subject-matter of the award mentioned in the Government order are directed against the Corporation of Calcutta and not against the employers mentioned in the Government order, who are contractors of the Corporation of Calcutta. The issues covered by that award were:

(1) Basic pay and dearness allowance.

(2) Leave and holidays.

(3) Should the present contract system be abolished and whether the workmen now employed by the three contractors mentioned above be directly employed by the Corporation of Calcutta on the same terms and conditions of employment as are enjoyed by similar workmen of the said Corporation of Calcutta?

8. The judge of the fifth industrial tribunal who passed that award has held that the result of the first two issues hangs on the third issue. In the issue (3) the judge has awarded that the contract system should be abolished and the workmen employed by the contractors should be brought directly under the Calcutta Corporation as its direct employees. So, the benefits which that tribunal awarded under issues (1) and (2) are obviously directed against the Calcutta Corporation.

(b) in its award in respect of issues (1) and (2) the tribunal has ordered that the workmen should be paid emoluments and other privileges as are available to workmen of the same status in the employment of the Calcutta Corporation. The tribunal has not specified those emoluments and privileges. So, the computation of those benefits would involve an interpretation of the award, such an interpretation has been discouraged by the High Court of Calcutta in the decision in the case of Rifle Factory Co-operative Society, Ltd. 1960-II L.L.J. 517.

9. The second labour court overruled both the preliminary objections, being of the opinion that even though the award on issue (3) was set aside, the benefits arising out of the award were enforceable against the petitioners, and further being of the opinion that the computation of the benefits mentioned in the award did not require its interpretation.

10. Against the order disallowing the preliminary objections, the petitioners have moved this Court, asking for a writ of certiorari for quashing the same.

11. Mr. K.B. Ghosh, learned Counsel for the petitioners, contended three points for my consideration. He argued, in the first place, that when the workers ask for a computation of benefits arising out of an award, under Section 33C(2) of the Industrial Disputes Act, it does not clie within the power of the Stale Government to refer the matter to a labour court. In support of his contention he relied on a decision of the Supreme Court in S.S. Shetty v. Bharat Nidhi, Ltd. 1957-II L.L.J. 696, and a decision of the Madras High Court in South Arcot Electricity Distribution Co., Ltd. v. Elumalai and Ors. 1959-II L.L.J. 624, and also two decision of the Court, namely, Rifle Factory Co-operative Society, Ltd. v. Fourth industrial Tribunal, West Bengal 1960-II L.L.J. 517, and Ramshankar v. State of West Bengal 1962-I L.L.J. 613.

12. In my opinion, Mr. Ghosh is right in his contention. I hold that the application being for computation of benefits under the award, the State Government was not competent to refer the matter to the labour court for computation.

13. There is also another ground on which the order must be set aside, as was contended for by Mr. Ghosh. The basis of the award is gone. The benefits of pay and clearness allowance payable to the workmen of the Corporation of Calcutta were awarded in favour of the Workmen, on the footing of the direction that they were to be absorbed in the Corporation of Calcutta. Now that this Court has held that they must not be so absorbed, the basis on which the workmen became entitled to pay and dearness allowance according to the rate of pay and dearness allowance in the Calcutta Corporation no longer exists, and the computation should not be made on that basis.

14. Thus, if the award had stood, then the computation of the pay and allowances should have been made as against the Calcutta Corporation, which was directed to absorb the workmen. Mr. Ghosh contended that the petitioners should not be made liable on such computation. Now that the aforesaid portion of the award no longer stands, neither the Corporation of Calcutta nor the petitioners can be made liable on computation. For these reasons, I hold that not only the reference to the second labour court was bad, but the labour court's own decision was also misconceived.

15. For the reasons aforesaid, I quash the order of the labour court, dated 25 July 1961, and make this rule absolute. Let a writ of certiorari accordingly issue. I make no order as to costs.